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Bar News - December 19, 2003

Owning Up, Trout in Milk & Other Musings
President's Perspective


BEGINNING AT LEAST in law school, I have always found the law fascinating. Not necessarily in its substance, but for the interesting facts and people you run across. A few examples follow.

Once Bitten . . .

As a very young lawyer, about to try his first dog bite case, and in an effort to conceal my inexperience, I was trying to find out whether the jury would be told of the statutory doubling of damages, or whether that was simply a ministerial act performed by the court following a verdict. My research took me to a decision reported at 70 N.H. 1, which had the answer. My eyes then drifted to the facing page (something no longer possible in this age of computer legal research), and I encountered the following surprising note:


Correction of Error in Vol. 52, New Hampshire Reports.

The report of State v. Cassady, 52 N.H. 500, is erroneous. Instead of holding the indictment good and ordering judgment on the verdict, as stated in the printed report, the court in fact held the indictment defective.

Mr. Justice Foster, desiring to fully present to his colleagues the arguments for each view, prepared for the consideration of the court two opinions, coming to diametrically opposite conclusions. The justices in consultation adopted the opinion which held the indictment defective, and the result was so announced in the public session of the court. Subsequently, in forwarding manuscripts to the law reporter, Judge Foster, by mistake, sent the opinion which the court had rejected.

There is, of course, an a priori improbability that such a mistake could have been made by one of the most careful and accurate judges who ever sat upon the New Hampshire bench; and the subsequent destruction by fire of all the court documents of Coos County renders it impossible to determine the matter by an inspection of the official record. That the mistake actually occurred is here asserted upon the authority of Hon. Jeremiah Smith, the only survivor of the justices who sat in the case, and also upon the authority of John G. Crawford, Esq., now of the Hillsborough bar, and Hon. Irving W. Drew, of Lancaster, who were counsel on opposite sides.

Manchester, December 17, 1901.

Humanizing and humbling, I would say.

Never Fear, Bud is on the Case

In addition to its great success in resolving many cases, a collateral benefit of Rule 170 mediation (particularly in multi-party cases) is the downtime for simply chatting about everything and nothing. I enjoyed this pleasure recently in Sullivan County Superior Court (where, notwithstanding the valiant efforts of volunteer mediator Barry Schuster, the case was not resolved) with several lawyers, including Orville "Bud" Fitch III, an assistant attorney general. For reasons I do not recall, talk turned to fishing (it may have had to do with why a particular judge spends a particular season in a particular court), and I shared with the lawyers and clients present my long-standing puzzlement over the following passage in a decision written by then Chief Justice Frank B. Kenison in 1977: "Some circumstantial evidence is very strong, as when you find a trout in the milk. Henry D. Thoreau, Journal, November 11, 1850." McIntosh v. Personnel Commission of New Hampshire, 117 N.H. 334 (1977). I stumbled across this a number of years ago, for reasons I canít remember, and periodically ask otherwise knowledgeable people what this means, and until now, could not find an answer.

By the time I arrived home that night, and checked my e-mail one last time, I was delighted to find the following definitive report from Bud Fitch:

Under the subject of circumstantial evidence in books of legal quotations, the quotation that often appears is this one from the early American writer Henry David Thoreau: "Some circumstantial evidence is very strong, as when you find a trout in the milk." The first reaction to this statement by people in our time would probably be, "What was Thoreau talking about?" But this is not a nonsensical proposition. If we had lived in Thoreauís time when there were no health department regulations and consumer protection agencies to oversee the contents of milk and when it was a common practice by milk suppliers to increase the volume of the milk by adding water, we would have well understood that a trout in our milk would strongly suggest that our milk supplier had added water from a nearby stream. Inferences are not made in a vacuum, but are formulated on the basis of human knowledge and experience." E-Z Mart Stores, Inc. v. Havner, 832 S.W. 2d 368, 375 (Tex. App. 1992) .

This explanation is consistent with other sources:

"How is evidence to be gathered, evaluated, weighed? And even before we ask those questions, we must ask what is to count as evidence? Some circumstantial evidence is very strong, as when you find a trout in the milk." Ė Henry David Thoreau

I had been familiar with that quip for years before I understood it. I knew from the first that the joke lay in the sheer obviousness of a trout in milk, but what I didnít know was what the trout was evidence of. Only later did I learn that in the days before public regulation of such things, it was the practice of unscrupulous dairymen to water the milk, to add volume cheaply in order to increase their revenue and profit. Water, fish, circumstantial evidence Ė you get it."

Author: Bob McHenry in a Web book titled, "How to Know" (on the Web, 1998)

A long-standing mystery solved.

So Whatís New?

If you are not an avid reader of Charlie DeGrandpreís regular column in New Hampshire Bar Journal, "Lex Loci," you missed the following gem (June 2003):

Apropos of nothing other than the author recently stumbled across the following story, which tickled his fancy and is contained in the 1770 census report of the county clerk of Grafton County, New Hampshire, to King George III:

Your Royal Majesty, Grafton County, New Hampshire, consists of 1,212 square miles. It contains 6,489 souls, most of whom are engaged in agriculture, but included in that number are 69 wheelwrights, 8 doctors, 29 blacksmiths, 87 preachers, 20 slaves, and 90 students at the new college. There is not one lawyer, for which fact we take no personal credit but thank an Almighty and Merciful God.

Iím not sure whether to take heart, or to despair. I think Iíll just try to do good work.

Russell Hilliard is the 2003-2004 NHBA president and practices with the law firm of Upton & Hatfield based in Concord and Hillsborough.

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